Website Terms & Conditions

1. Application of Terms and Third Party Beneficiary

Skinceuticals (“Manufacturer”) provides this and related websites (all together, the “Website”) for your use in purchasing products and services depicted in the Website (all together “Products”). Manufacturer is required by its suppliers to bind the users (“Users”) of this Website and its customers that use this Website (“Customers”) to certain flowdown terms and conditions (all together, the “Terms”). Accordingly, the Terms are the agreement between the Manufacturer and its Users and Customers for the use of the Website for the purchase and sale of the Products. No contract or agreement shall exist directly between the Users and Customers and the suppliers to Manufacturer, including, but not limited to, the suppliers of the Website. The suppliers, however, shall benefit from and may enforce the Terms directly against Users and Customers of the Manufacturer as third party beneficiaries. Notwithstanding any contrary terms in the Terms, suppliers may enforce the Terms in court or by arbitration at the option of each supplier. Neither the Users nor the Customers of the Manufacturer may benefit from or enforce against the suppliers these Terms or separate agreements between the Manufacturer and its suppliers. The Users and the Customers will be contractually bound by, and be deemed to have accepted, the Terms by agreeing to the Terms through use of a Website mechanism for click-through acceptance of the Terms, by any use of the Website, or by any purchase or sale of Products (all together, the “Acceptance”).

2. Change in Terms

The Website supplier to the Manufacturer may cause the Manufacturer to change, or the Manufacturer may change, the Terms at any time by the posting revised Terms on the Website or by the Manufacturer giving the Users and Customers electronic or written notice of changed Terms sent in accordance with the Terms. Electronic notice may be by email, by the Website, or by other electronic means determined by the Website supplier to the Manufacturer (all together, “Electronic Notice”). The Users and the Customers agree that the Website posting or Electronic Notice or written notice of changed Terms is actual notice of changed Terms and that changed Terms are deemed accepted by each User and Customer by his or her use of a Website mechanism for click-through acceptance of the changed Terms, by any use of the Website by each User or Customer, or by any purchase or sale of Products by each User or Customer after changed Terms are posted on the Website or after Manufacturer has given the Users or Customers Electronic Notice or written notice of changed Terms.

3. License and Ownership of Website and Content

Provided that the Users and Customers comply fully with the Terms, and provided further that the Manufacturer complies fully with its agreements with the Website supplier, Manufacturer under its agreement with its Website supplier represents that the Website supplier has granted to the Users and the Customers a personal, non-transferable, non-exclusive, revocable, limited license to use the Website and content on the Website (“Content”) solely for the purchase and sale of the Products (the “Purpose”). The Users and Customers will not: (a) access, copy, disclose, or use any part or all of the Website or the Content, except for the Purpose; (c) reverse engineer, decompile, or otherwise attempt to discover source code for the Website or the Content; (d) create derivative works from the Website or the Content; or (e) sell, resell, lease, sublease, license, sublicense, or otherwise dispose of or transfer the Website or the Content, except as otherwise expressly permitted in and by the Terms or the Website.

This license shall automatically terminate upon the first to occur of the following: (f) termination of the Terms or any agreement between Manufacturer and the Website supplier; (g) breach of any of the Terms, including, but not limited to, any License Term or any Acceptable Use Term, by any User or any Customer or breach of any agreement between the Manufacturer and the Website supplier; (h) failure of the Manufacturer to pay any amount to the Website supplier when due; or (i) termination of use of the Website or Content or termination of the purchase and sale of the Products by the Manufacturer and/or its Users or Customers. Upon termination of the License, the Users and Customers will cease all use of the Website and the Content and will permanently destroy all copies of the Content in their possession. The Users and Customers acknowledge and agree: (j) that, excluding User and Customer Information (as defined below), the Website supplier is, and will remain, the exclusive owner of the Website and the Content and derivatives of the Website and Content and all intellectual property rights in the Website and the Content and derivatives of the Website and Content; and (k) the Website supplier is, and will remain, the exclusive owner of all Content, including, without limitation, information provided by the Users, and/or Customers on the Website, or otherwise, including, but not limited to User and Customer Information (as defined below), from which identifying information concerning the Users and Customers has been removed (all together, “De-Identified Information”). Information owned by the Website supplier, including, but not limited to, De-Identified Information, may be used, copied, and/or disclosed by the Website supplier for any purpose, including, but not limited to, the Purpose.

4. Payment

Each User or Customer will pay the Manufacturer upon demand for the Products selected by the User or Customer by a valid credit card accepted by the Manufacturer, or by other payment mechanism specified by the Website supplier, at the rates for the Products specified on the Website. Manufacturer accepts the following credit cards: MasterCard, VISA, American Express, Discover. Each User and Customer hereby agrees to provide the Manufacturer (and its suppliers) all information and writings requested by Manufacturer (and its suppliers) in connection with each User or Customer credit card or other payment and hereby authorizes the Manufacturer (and its suppliers) (a) to retain, archive, and use each User or Customer credit card or other payment information and writings in connection with each User or Customer credit card or other payment and (b) to charge each User or Customer’s credit card for payments for Products selected by such User or Customer. Manufacturer may charge each User or Customer a late payment charge at the lower of one-half of one percent (1/2 %) per month or the legal rate in the State of Texas applied to all outstanding overdue payments due from each User or Customer to Manufacturer (“Late Payment Charge”). Each User or Customer agrees to pay Late Payment Charges charged by Manufacturer to each User or Customer. In addition to all other rights and remedies in the Terms or available at law or in equity, Manufacturer (and its suppliers) may refuse to provide Products, suspend their performance, in whole or in part, and/or terminate the Terms, including, but not limited to, the License Terms, in whole or in part, for any delay or failure in payment by any User or Customer to the Manufacturer or by Manufacturer to the Website supplier.

5. Term, Termination, Suspension of Performance, and Notice

The Terms, as changed by Manufacturer from time-to-time in accordance with the Terms, are effective at the Acceptance and shall continue until termination of the Terms in accordance with the Terms. By written notice or Electronic Notice, Manufacturer may terminate the Terms or suspend or terminate its performance under and pursuant to the Terms, in whole or in part, for any one or more of the following causes: (a) breach of any of the Terms by any User or Customer; (b) failure by any User or Customer to pay any amount to the Manufacturer when due; (c) breach of any License Term or Acceptable Use Term by any User or any Customer; (d) violation of any law by any User or Customer; or (e) any termination of the separate agreement between Manufacturer and its suppliers, including, without restriction, the Website supplier, or any termination or suspension of performance by its suppliers, including, without restriction, the Website supplier. In addition, the Manufacturer may terminate the Terms and its performance as a whole for convenience by giving each User or Customer ninety (90) or more days advance written notice or Electronic Notice. For avoidance of doubt, Manufacturer suppliers shall have no obligation to provide written notice or Electronic Notice to Customers or Users under or in connection with the Terms or the separate agreements between Manufacturer and its suppliers. Written notice or Electronic Notice to Customers and Users will be provided by Manufacturer. Notice shall be sent to addresses set forth in the Terms. Manufacturer’s address for notice is set forth in the Website. Users and Customers mail and electronic addresses for notice are the addresses provided by each User and each Customer to Manufacturer when each User or Customer opened his/her Website account with the Manufacturer. Either party may change its notice address by notice sent in accordance with this section of the Terms. Termination for any or no reason will not relieve Users or Customers of their respective payment, confidential information, license, or indemnity obligations to Manufacturer (or its suppliers), which will survive termination of the Terms.

6. LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF MANUFACTURER AND ITS SUPPLIERS TO USERS AND/OR ITS CUSTOMERS IN CONNECTION WITH THE TERMS, THIS WEBSITE, THE CONTENT, AND THE PRODUCTS, WHETHER IN TORT, INCLUDING, BUT NOT LIMITED TO, MANUFACTURER’S OR ITS SUPPLIERS’ NEGLIGENCE, CONTRACT, OR OTHERWISE, SHALL NOT EXCEED THE LOWER OF THREE (3) MONTHS OF PRICES PAID BY THE COMPLAINING USER OR CUSTOMER TO THE MANUFACTURER UNDER THE TERMS OR THE PRICE FOR THE PRODUCT GIVING RISE TO THE LIABILITY CLAIM BY THE COMPLAINING USER OR PATIENT. IN NO EVENT SHALL MANUFACTURER OR ITS SUPPLIERS BE LIABLE TO THE USERS OR CUSTOMERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL MANUFACTURER OR ITS SUPPLIERS BE LIABLE IN DAMAGES TO USERS, CUSTOMERS, AND/OR THIRD PARTIES FOR CLAIMS OF INFRINGEMENT OF ANY KIND, AND THE ENTIRE LIABILITY OF MANUFACTURER AND ITS SUPPLIERS TO USERS, CUSTOMERS, AND/OR THIRD PARTIES FOR CLAIMS OF INFRINGEMENT SHALL BE LIMITED TO REMOVAL OF THE INFRINGING ITEM TO THE EXTENT REASONABLY POSSIBLE FROM THE WEBSITE AND/OR OTHER PUBLICATIONS OF MANUFACTURER SUPPLIERS. WITH RESPECT TO CLAIMS OF INFRINGEMENT, AT MANUFACTURER’S SUPPLIER(S) EXCLUSIVE OPTION, SUCH SUPPLIER(S) MAY, BUT ARE NOT OBLIGATED TO, MODIFY THE WEBSITE, THE CONTENT, OTHER CONTENT, NAMES, MARKS, OR INFORMATION PROVIDED BY MANUFACTURER TO ITS SUPPLIERS, AND/OR USER AND CUSTOMER INFORMATION (AS DEFINED BELOW) IN ORDER TO REMOVE, AVOID, OR REMEDY CLAIMS OF INFRINGEMENT. ANY SUCH ACTION BY MANUFACTURER SUPPLIERS SHALL NOT BE DEEMED A BREACH OF THESE TERMS AND SHALL BE WITHOUT LIABILITY TO MANUFACTURER, ITS USERS, ITS CUSTOMERS, OR ANY THIRD PARTY, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION.

7. DISCLAIMER OF WARRANTY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MANUFACTURER AND ITS SUPPLIERS MAKE NO WARRANTIES TO THE USERS OR CUSTOMERS IN CONNECTION WITH THE WEBSITE, THE CONTENT, AND/OR THE PRODUCTS AND DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, OR OTHERWISE. THE WEBSITE, THE CONTENT, AND THE PRODUCTS ARE PROVIDED “AS IS” AND WITH ALL FAULTS. SOME STATE LAWS MAY NOT PERMIT THE FOREGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTY. USERS AND CUSTOMERS SHOULD REVIEW THE LAWS OF THEIR STATES TO DETERMINE THE APPLICATION OF THE LIMITATIONS.

8. Indemnity

Each User and Customer will, at his/her sole cost and expense, indemnify, hold harmless, and defend the Manufacturer, the Manufacturer suppliers, including, without restriction, the Website supplier, and their respective members, officers, employees, agents, and suppliers (all together, the “Manufacturer Indemnitees”) from and against all claims, demands, liability, actions, lawsuits, orders, and judgments (all together, the “Claims”) against the Manufacturer Indemnitees arising from one or more of the following: (a) breach of any of the Terms including, but not limited to, any License Term and/or any Acceptable Use Term, by the indemnifying User or Customer; (b) the negligence or other wrongful act or omission of the indemnifying User or Customer; (c) the use or abuse of the Website, the Content, and/or any of the Products by the indemnifying User or Customer; and/or (d) violation of any law, rule, regulation, or order by the indemnifying User or Customer. Manufacturer will give the indemnifying User or Customer reasonable written or Electronic Notice of any written Claim subject to indemnification under these Indemnity Terms. Manufacturer, its indemnifying Users, and its indemnifying Customers will undertake promptly defense of all Claims using counsel acceptable to the Website supplier. If such defense is not undertaken promptly or is undertaken with counsel not acceptable to one or more of such suppliers, the affected indemnified supplier or suppliers may undertake such defense at the sole cost and expense of Manufacturer, its indemnifying Users and its indemnifying Customers. Manufacturer, its indemnifying Users and its indemnifying Customers shall not settle any Claim without the prior written consent of the Website supplier.

9. User and Customer Information, License, and Covenants

Users and Customers will provide to Manufacturer (and its suppliers) all information and writings requested by, and in a format specified by, Manufacturer’s Website supplier in order to provide or depict the Website, other Manufacturer supplier publications, the Content, and/or the Products to the Users and Customers, other users of other supplier publications, to apply for, have, own, enforce, and/or maintain intellectual property, including, without restriction, trademarks, service marks, and copyrights, and/or to perform or enforce any of these Terms (all together, the “User and Customer Information”). The Users and Customers agree, covenant and grant as follows: (a) that Manufacturer (and its suppliers) will and may rely upon the User and Customer Information in order to provide or depict the Website, other Manufacturer supplier publications, the Content, and/or the Products, to perform or enforce any of these Terms, for other purposes permitted in the Terms or applicable law, to apply for, have, own, enforce, and/or maintain intellectual property, including, without restriction, trademarks, service marks, and copyrights, and for purposes set forth in the Website privacy policy set forth at privacy.html on this website; (b) Manufacturer (and its suppliers) are hereby granted a world-wide, non-exclusive, royalty-free, transferable, irrevocable, and perpetual license (with a right to sublicense third parties) to use, reproduce, copy, disclose, distribute, transmit, transfer, post, upload, display, adapt, modify, and make derivative works of the User and Customer Information in order to provide or depict the Website, other Manufacturer supplier publications, the Content, and/or the Products, to perform or enforce any of these Terms, to apply for, have, own, enforce, and/or maintain intellectual property, including, without restriction, trademarks, service marks, and copyrights, for other purposes permitted by these Terms or applicable law, and for purposes permitted by the Website privacy policy set forth at privacy.html on this website; (c) User and Customer Information is complete and accurate and does not infringe the rights or property of third parties; (d) the Users and Customers, as applicable, own the User and Customer Information and/or have all rights and consents necessary to perform the Terms, including, but not limited to, the right to grant the licenses and sublicenses under this section of the Terms; and (e) the Users and Customers hereby consent to use of the User and Customer Information as described in the Terms and will provide written evidence of such consent as requested by Manufacturer (and/or its suppliers) from time-to-time.

10. Confidential Information

(a) Unless otherwise required by law, no information provided by the Users and/or Customers to Manufacturer (and/or its suppliers), including, but not limited to User and Customer Information, is confidential information of the Users and/or Customers. Information provided by the Users and/or Customers may be used, disclosed, and copied by Manufacturer (and its suppliers) for any purpose permitted by applicable law and/or the Terms or otherwise. Users and Customers hereby consent to and authorize such use, disclosure, and copying, and such Users and Customers will provide written evidence of such consent and authorization as requested by Manufacturer or it suppliers from time-to-time. (b) The following information is and shall remain the confidential information and the sole and exclusive property of the Manufacturer, the Website supplier and/or their suppliers: (i) De-Identified Information; (ii) Content which is not publicly available without restriction, including, but not limited to, pricing; (iii) software programming code for the Website and Content; (iv) the Terms; and (v) other information designated by the Manufacturer, the Website supplier, or their suppliers as confidential information from time-to-time. If disclosed to the Users and/or Customers, such confidential information shall be used by them solely for the Purpose and shall not be copied or disclosed by them to third parties unless such copying or disclosure is approved in advance in writing by the owner of the confidential information. The Users and Customers have no interest or right in such confidential information except as expressly granted by the Terms and will return or destroy all copies of such confidential information in their possession or control upon demand by the owner of such confidential information and/or upon termination of the Terms and/or any license to use such confidential information.

11. Acceptable Use

Manufacturer (and/or its suppliers) may terminate, deny, suspend or otherwise restrict access to or use of the Website or the Content by Users and/or Customers, or terminate, in whole or in part, the Terms, if use, disclosure, or copying of the Website or Content by Users and/or Customers, in the sole discretion of Manufacturer (and/or its suppliers), violates the Terms, is objectionable or unlawful, and/or interferes with the functioning or use of the Website and/or the Content by Manufacturer, its suppliers or other users.

Violation of Acceptable Use Terms includes, but is not limited to, any one or more of the following: (a) accessing without permission or right the accounts, the Website, the Content, or computer systems of Manufacturer, its suppliers or other persons, spoofing the URL, DNS or IP addresses of Manufacturer, its suppliers or any other person, and/or penetrating the security measures of the Website or computer system or any other person’s computer system, or to attempt any of the foregoing; (b) transmitting uninvited communications, data or information, or engaging in other similar activities, including, but not limited to, “spamming”, “flaming” or denial of service attacks; (c) intercepting, interfering with or redirecting email or other transmissions sent by or to Manufacturer, its suppliers or others; (d) introducing into the Website and related networks viruses, worms, harmful code or Trojan horses; (e) engaging in conduct that is defamatory, fraudulent, obscene or deceptive; (f) infringing or otherwise violating Manufacturer’s, its suppliers’ or any other person’s copyright, trademark, patent, trade secret, proprietary, or other intellectual property rights; (g) engaging in any conduct harmful to the Website, the Content, the related networks, and/or other users of the same; and/or (h) using the Website or the Content to violate or in violation of applicable law.

12. Miscellaneous

(a) The Terms are the entire agreement between the Users, the Customers, and the Manufacturer and they supersede all prior or contemporaneous agreements, representations, and understandings. (b) The Terms may be changed only by the Manufacturer (and/or its suppliers) in accordance with the Terms. (c) Any party may waive performance of any Term by another party by written notice signed by the waiving party or by Electronic Notice from the waiving party. No other waivers shall be effective. (d) All obligations incurred by a party under the Terms, including, but not limited to Payment Terms, Confidential Information Terms, Indemnity Terms, and License Terms shall survive termination of the Terms. (e) In the event that a party commences litigation, mediation, or arbitration of a dispute against another party in connection with the Terms, the legal expenses and costs, including, but not limited to attorneys’ fees and other costs of litigation, mediation or arbitration, of the party that prevails in such litigation, mediation, or arbitration shall be paid by the party that did not prevail. (f) Manufacturer may assign the Terms to a successor in interest without notice and/or to another person or entity by written notice or Electronic Notice to the affected Users and Customers. The Users and Customers may not assign the Terms without the prior written consent of the Manufacturer, which consent may be given in Manufacturer’s sole discretion, and, if given, by either by written notice or Electronic Notice by Manufacturer to the affected Users and/or Customers.

(g) In addition to payments due for Products, the Users and/or Customers will pay all taxes, duties, and fees required by law in connection with Products, other than taxes on net income owed by the Manufacturer, unless an exemption applies by law and is duly documented by the Users and/or Customers to the satisfaction of Manufacturer. (h) The Manufacturer, Users and Customers are independent contractors and not agents or employees of the other. Except as otherwise expressed in the Terms, neither party may act for or bind the other. The persons furnished by each party are the employees or contractors of the furnishing party and not the employees or contractors of the other party. The furnishing party will be solely responsible for compliance with labor and tax laws applicable to that party’s employees and contractors. (i) In the event that any term of the Terms is held to be unenforceable, the unenforceable term shall be severed from the remainder of the Terms and the remaining enforceable Terms shall be performed by the parties. (j) Manufacturer (and its suppliers) shall not be liable to Users and/or Customers for any failure or delay in performance due to causes beyond Manufacturer’s (or each of its supplier’s) reasonable control, including, but not limited to, weather, fire, storm, flood, earthquake, or other acts of God, war, terrorism, embargo, boycott, strikes or other labor disputes, delays or failures in transportation, acts of government, civil, or military authority, delays or failures by suppliers, and other causes beyond Manufacturer’s (or each of its supplier’s) reasonable control. Manufacturer’s (and each of its supplier’s) time for performance shall be extended by a period of time at least equal to the time period of the foregoing cause or causes.

(k) The Terms shall be governed by and construed in accordance with the laws of the State of Texas, except laws concerning conflicts of law and venue for all permitted lawsuits and arbitrations in connection with these Terms shall be in Dallas County, Texas, unless otherwise agreed in writing by the parties to such lawsuits or arbitrations. The Users and Customers consent to personal jurisdiction of courts and arbitrations in Dallas County, Texas and will not object to such venue. (l) In lieu of judicial resolution of disputes in connection with the Terms, other than Manufacturer (or its suppliers) claims for breach of License, Indemnity, Confidential Information, or Payment Terms, or claims by Manufacturer (or its suppliers) for injunctive or other equitable relief in favor of Manufacturer (or its suppliers), the Manufacturer and its Users and Customers agree to binding, final, confidential, non-class action commercial arbitration by the American Arbitration Association or JAMS, at the option of Manufacturer and/or its suppliers, of such disputes, subject to the Federal Arbitration Act, 9 U.S.C. sec. 1, et seq. Any party may commence such arbitration after written or electronic notice of the dispute is given by the complaining party to the other parties, provided that the affected parties have not been able to resolve the dispute by negotiation for at least five (5) business days after the dispute arises. The prevailing party in the arbitration may cause any court with jurisdiction to enter the final decision of the arbitrator(s) as a final judgment in accordance with applicable law.

THE FOREGOING TERMS WILL WAIVE THE RIGHT TO FILE A LAWSUIT IN COURT, WAIVE THE RIGHT TO A JURY TRIAL AND BAR CLASS ACTION LAWSUITS. THE USERS AND CUSTOMERS WILL NOT OBJECT TO SUCH WAIVERS AND BAR. (m) Risk of loss for Products purchased by Users or Customers shall pass to Users or Customers at the time of purchase. Manufacturer retains, and Users and Customers hereby grant to Manufacturer, a purchase money security interest in the purchased Products until full payment for such Products is received by Manufacturer. Manufacturer and its suppliers, including, without limitation, the Website supplier, shall have no liability for loss of, damage to, or injury to Products after purchase by Users or Customers. Users and Customers acknowledge and agree that each of them may purchase insurance to cover such risk of loss and that the Manufacturer and its suppliers will not purchase such insurance for the benefit of Users and Customers. (n) If any person believes the Website or Content infringes that person’s copyright, that person should provide notice in writing to the Website supplier, MNO Marketing & Design LLC, d/b/a Derm Resource Group, attention Copyright Notice Manager, 6350 LBJ Freeway, Suite256, Dallas, TX 75240, email address: webmaster@dermpro.com with the following information: (i) signature of copyright owner or person authorized to act on behalf of the owner; (ii) identification of copyrighted work claimed to be infringed; (iii) identification of the material claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact the complaining party (address, phone number and, if available, email address); (v) a statement that the complaining party has a good faith belief that use of the material in the manner complained is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right allegedly being infringed.